Soble v. State

• Decision Date: 09 June 1948
• Docket Number: No. 24053.,24053.
• Citation: 218 S.W.2d 195
• Parties: SOBLE v. STATE.
• Court: Texas Court of Criminal Appeals

218 S.W.2d 195

SOBLE v. STATE.

No. 24053.

Court of Criminal Appeals of Texas.

June 9, 1948.

Rehearing Denied March 9, 1949.

Commissioners' Decision.

Appeal from Criminal District Court, Dallas County; Robert A. Hall, Judge.

Louis Soble was convicted of burglary and he appeals.

Affirmed.

Grady Niblo, and A. S. Baskett, both of Dallas, for appellant.

Will R. Wilson, Jr., Dist. Atty., Henry Wade and George P. Blackburn, Asst. Dist. Attys., all of Dallas, Texas, and Ernest S. Goens, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

Appellant was the owner of a large stock of what is known as "salvage" merchandise, which was stored in nine different buildings located in the City of Dallas. On March 6, 1946, he sold this entire stock to Smith, the injured party, for $25,000. The whole of the purchase price was not paid at the time. It was agreed that as Smith disposed of the stock, payments were to be made on the balance due and that the buildings were not to be entered or merchandise removed prior to final payment, except by the agreement of each party. In furtherance of this agreement, two locks were placed upon each building; one party had a key to one lock and the other to the other lock. The second story of one of the buildings located on Elm Street was No. 2717½.

According to the State's testimony, Smith, on or about April 15, 1946, had completed payment of the full amount of the purchase price and had removed from the buildings all the merchandise therein, save and except that at 2717½ Elm Street. In that building he had merchandise valued at from $1,000 to $2,000. He placed a new lock on that building and paid to appellant rent upon the building until May 6, following.

According to the accomplice witness Powell, appellant, about that time, broke the new lock on the building and moved the merchandise therein to the garage at his residence, Powell hauling the merchandise at appellant's hiring.

Several months thereafter, a search was made of the garage and, as a result thereof, merchandise was found therein which Smith identified as having been stolen from 2717½ Elm Street.

It is for this burglary that appellant stands here convicted, with punishment assessed at ten years' confinement in the State penitentiary.

Appellant admitted that he broke the lock from the door and entered the building at 2717½ Elm Street for the purpose of cleaning it up but that this was long after appellant's lease or right of occupancy of the building had expired and that the reason he broke that lock was because Smith lived in another city and no key was available to the lock. Appellant denied that any merchandise was in the building belonging to Smith at that time, or that any merchandise was taken therefrom by him or the witness Powell. He denied that any of the merchandise found in his garage was the property of Smith and explained his possession of the property found in his garage by saying that he had purchased same through proper and legitimate channels.

The State's testimony showed appellant guilty as charged. The jury accepted the State's testimony.

It is insisted that the search of appellant's garage and the findings of the merchandise therein were unauthorized, because of an invalid search warrant.

For the purpose of this discussion, it will be assumed that the search warrant was invalid and the search thereunder was unauthorized, but such, however, by no means shows reversible error, for appellant, testifying as a witness, admitted possession of the property found in his garage.

The only fact established by the search of appellant's garage was that he possessed the property found therein. This fact of possession, having been admitted by him, rendered his objection to the search untenable. One may not complain of the receipt in evidence of facts which he also puts in evidence. Schaefer v. State, 121 Tex.Cr.R. 220, 53 S.W.2d 302; Wachxmann v. State, 124 Tex.Cr.R. 70, 60 S.W. 2d 216; Johnson v. State, 118 Tex.Cr.R. 293, 42 S.W.2d 421; McLaughlin v. State, 109 Tex.Cr.R. 307, 4 S.W.2d 54.

The accomplice witness Powell testified to the effect that prior to the commission of the instant offense, he had, at appellant's instance, hauled merchandise from buildings other than 2717½ Elm Street to the home of appellant.

Appellant's objection to this testimony was that it showed the commission by appellant of another and extraneous offense.

The trial court overruled the objection, but in his charge gave the jury the following instruction thereto, as follows:

"If there is...